Secretary, Ministry of Finance Vs. Md. Masdar Hossain and others, 52 DLR (AD) BLD (AD) 104

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1 Secretary, Ministry of Finance Vs. Md. Masdar Hossain and others, 52 DLR (AD) BLD (AD) 104 Present: Mustafa Kamal CJ Latifur Rahman J The Supreme Court Appellate Division (Civil) Bimalendu Bikash Roy Choudhury J Mahmudul Amin Choudhury J Secretary, Ministry of Finance Appellant Vs. Md. Masdar Hossain and others respondents Judgment December 2, The Constitution of Bangladesh, 1972, Article 134 Article 152(1) The judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is a functionally and structurally distinct and separate service from the civil executive and administrative services of the Republic...76(1) Articles 115, 133 & 136 The President can create and establish a judicial service and also a judicial magistracy and make rules and also the rules regarding suspension and dismissal etc. These articles and the Service (reorganization and conditions) Act, 1975 have no manner of application in respect of judicial service and judicial magistracy...76(2) The Bangladesh Civil Service (reorganization) Order, The creation of BCS (Judicial) Cadre along with other BCS executive and administrative cadres by Bangladesh Civil Service (Reorganisation) Order 1980 with amendment of 1986 is ultra vires the Constitution..76(3) Article 115 Necessary steps be taken forthwith for the president to make Rules under Article 115 to implement its provisions which is a constitutional mandate. Nomenclature of the judicial service shall be designated as the Judicial Service of Bangladesh or Bangladesh Judicial Service and a Judicial Service Commission constituted for recruitment in that sevice;..76(4) Article 116, 116A and 133. Law or rules or executive orders having the force of rules be framed relating to posting, promotion, grant of leave, discipline, pay allowances, pension etc be enacted or framed or made separately for judicial service and judicial magistracy...76(5) Article 115 Impugned orders are declared ultra vires the Constitution. The Government be directed to establish a separate judicial pay commission forthwith as a part of the rules to be framed under article 115 to review the pay, allowance and other privileges of the judicial service and the pay of the judicial service shall follow the recommendation of the commission..76(6) Article 116 In exercising control and discipline of the judicial service and judicial magistracy opinion of the supreme court shall have primacy over those of the executive...76(7) Article 116A and 132 Security of tenure, salary, other benefits, pension and independence from parliament and executive shall be secured framing law or rules or executive orders having the force of law under article (8) The Administrative Tribunal The members of the judicial service are within the jurisdiction of the administrative tribunal...76(10) Power of the parliament If the parliament so wishes it can amend the constitution to make the separation more 1

2 meaningful, pronounced, effective and complete..76(11) Article 94(4), 116 A The independence of the judiciary, as affirmed and declared by Articles 94(4) and 116A, is one of the basic pillars of the Constitution and cannot be demolished, whittled down, curtailed or diminished in any manner whatsoever, except under the existing provisions of the Constitution...(57) Lawyers Involved: Mahmudul Islam, Attorney-General, instructed by Sharifuddin Chaklader, Advocate-on- Record For the Appellant. Dr. Kamal Hossain, Syed Ishtiaq Ahmed and Amir-ul-islam, Senior Advocates, instructed by Md. Aftab Hossain, Advocate-on-Record For Respondent Nos. 75, 133 & 183. Not represented ;Respondent Nos. 1-74, 82 & Civil Appeal No. 79 of (From the Judgment and order dated passed by the High Court Division in Writ Petition No of 1995). Judgment: Mustafa Kamal CJ.- How far the Constitution of Bangladesh has actually secured the separation of the judiciary from the executive organs of the State and whether the Parliament and the executive have followed the constitutional path are the crux issues that fall to be determined in this appeal by leave by the Government appellant from the judgment and order dated passed by a Division Bench of the High Court Division in Writ Petition No of Writ petitioner-respondents who are either District Judges, Additional District Judges or Subordinate Judges or other judges in the subordinate judiciary filed the said Writ Petition impleading the appellant. Secretary, Ministry of Finance, Government of Bangladesh as respondent No. 3 and other Ministries and functionaries of the Government as respondent Nos. 1-2 and 4-6 in which a Rule Nisi was issued at the first instance to show cause as to why the Bangladesh Civil Service l-organisation) Order, 1980, purporting to incorporate Judicial Service within the Bangladesh Civil Services as one of the Cadre Services vide paragraph 2(X) thereof should not be declared as ultra vires the Constitution and unconstitutional, in particular violative of Articles 27 and 29 of the Constitution and why the impugned orders passed by the appellant dated and suspending and then canceling respectively an earlier order of the appellant dated regarding the pay and allowances of the respondents should not be declared ultra vires, malafide, discriminatory and violative of fundamental rights as guaranteed by the Constitution and to show cause as to why the attempt to treat the Judges of the subordinate Courts as part of the Civil Services Cadre meant for the executive branch of the Government and to subject them to any laws meant for the employees of the executive Government should not be declared as illegal and ultra vires the Constitution and why a separate set of rules for the Judges of the subordinate Courts should not be framed as contemplated under Article 115 of the Constitution. This Rule Nisi was issued on On the application of the writ petitionerrespondents another Rule Nisi was issued calling upon the same respondents to show cause as to why the benefits allowed as per paragraph 3 of the impugned order dated vide Annexure F (1) to the officers of the other cadres should not be given also to the Senior Assistant Judges and the Assistant Judges of the judicial service of the Republic. 4. An affidavit-in-opposition was filed on behalf of the present appellant who as already noted, was respondent No. 3 in the writ petition, but no affidavit - in -opposition was filed by the other respondents. On when the matter came up for hearing before a Division Bench of the High Court Division the Court passed an order requesting the learned Attorney-General to appear in this case as it involved important questions of law having far reaching effect. The learned Attorney-General was notified and on this matter came up in the list and was adjourned on the prayer of the Government. Again this matter came up for hearing on when a Counsel for the Government stated that the learned Attorney- General had already written to the Government in respect of the reliefs sought for by the writ petitioners and prayed for some time for examination of the matter by the Government. The Division Bench adjourned the matter upto When the matter was taken up for hearing on , a Counsel for the Government informed the Court that the learned 2

3 Attorney-General had written to the Government expressing an opinion favourable to the writ petitioners and that the Government had not filed any affidavit-in-opposition. The Division Bench noted that the learned Attorney-General had given his opinion favourable to the writ petitioners and that the other respondents had not appeared and contested the Rules Nisi. In such a situation, it appeared to the Division Bench that neither the Government had acted in the meantime in accordance with the opinion of the learned Attorney-General nor the Government was interested in contesting the Rules Nisi. So the Division Bench heard only the several learned Advocates for the writ petitioners and thereafter by judgment and order dated made the Rules Nisi absolute and gave certain other directions which will be noted in due course. 5. It is against the aforesaid judgment and order that of all the various Ministries and functionaries of the Government, named as respondents in the writ petition, only respondent No. 3 mentioned above obtained a leave to appeal. 6. The writ petitioner s basic cause of grievance emanates from Annexure-A to the writ petition, a Cabinet Secretariat, Establishment Division (Implementation Cell) Order dated contained in SRO No /80/ED (IC)SII 92/80-98 calling the Order as the Bangladesh Civil Service (Re-organisation) Order, 1980 providing therein that there shall be 14 Bangladesh Civil Service Cadres, Bangladesh Civil Service (Judicial) being No. 2 (X) of them. The parent legislation that supports this Order is Annexure-B to the writ petition, namely, The Services (Re-organisation and Conditions) Act, 1975 (Act No. XXXII of 1975), hereinafter called the Act, conferring on the Government the power to create new services or amalgamate or unify existing services. In exercise of powers under section 5 thereof, the Government passed the Services (Grade Pay and Allowances) Order, 1977 fixing the grades, scales of pay etc of, inter alia, the subordinate judiciary, re-fixing them from time to time by issuing fresh Orders under section 5. By order dated the appellant in the Implementation Cell accepted in paragraph 3 thereof that the Bangladesh Civil Service (Judicial) officials perform a kind of work the nature and character of which is different and separate from others and on that ground and consideration re-fixed their present National Pay Scale, 1991, enhancing substantially their pay scale that was in force before However under the pressure of other Bangladesh Civil Service Cadres the appellant was forced to postpone implementation of the order dated by an order dated which has been impugned in the writ petition. By a further order dated the appellant re-fixed the scale of pay of Bangladesh Civil Service (Judicial) officers with effect from , which the writ petitioners also challenged as being discriminatory and violative of their fundamental rights. 7. As the Division Bench of the High Court Division accepted fully all the submissions made by the several learned Advocates for the writ petitioners it will be enough to summarise the impugned judgment in its essentials which will reflect both the arguments and submissions of writ petitioners as well as the rationale of the impugned judgment. 8. Six broad points were urged by the petitioners and accepted by the High Division. They are the following: (1) The term BCS (Judicial) is a misconception as judicial service is recognised treated separately in Articles 115, 116 and ll6 A of the Constitution and defined separately in Article 152(1) of the Constitution. The subordinate Courts are part and parcel of Part VI of the Constitution as a separate and independent entry and cannot be a part of the civil, administrative or executive service of the country. The definition of the service of Republic in Article 152(1) of the Constitution is broad and includes defence and judicial services, but that does not mean that judicial service or defence service is a part of the civil administrative service. The definition clause cannot bring judicial service within the ambit of executive or administrative service which is called Bangladesh Civil Service. Article 133 cannot be invoked for the judicial officers as there are separate provisions for them in Articles 115 and 116 of the Constitution. Judicial officers are not persons in service of the Republic for the purpose of Article 133 and hence the Rules regarding the appointment and conditions of service cannot be framed under Article 133. It will be totally unconstitutional if the subordinate courts are tagged with or brought under the control of the executive under Part IX or any other part of the Constitution; excepting Part VI. The judicial service cannot be legally brought within the ambit of Act No. XXXII of 1975 because if it is so done it will alter the very fundamental and basic structure of the Constitution relating to separate and independent judicial service as contained in Part VI of the Constitution. The inclusion of the judicial service under Bangladesh Civil Service (Re-organisation) Order, 1980 dated as Bangladesh Civil Service (Judicial) is ultra vires the Constitution. As the defence service is 3

4 under Part IV, so is judicial service under Part VI. In such a situation, the defence service has been correctly organised by separate Acts and Rules and in a similar way the judicial service shall have to be organised in accordance with the provisions of Part VI and the enactments and rules made thereunder. (2) The writ petitioners have come up for a declaration that the judiciary has already been separated under Part VI and that the respondents should be directed to implement and carry out the mandate of the Constitution in pursuance of Articles 109, 115, 116 and 116A. In the instant case the High Court Division can direct the legislature and the executive to perform their functions which they are required to do under the Constitution. The State should provide immediately for bringing judicial service under the direct control of the High Court Division functionally and structurally and this direction was given by the High Court Division in exercise of power under Article 102(2) (a) (i) of the Constitution. The High Court Division, in its opinion, is competent to direct the respondents to make necessary Rules and/or enactment in order to enable the subordinate judiciary to function as an independent institution. Rules made under Article 115 may provide for independent Service Commission as well as independent Pay Commission for the purpose of appointment of judicial officers and magistrates performing judicial functions and for the purpose of fixing their scales and grades of pay commensurate with their recognised status in the Constitution. (3) For effective implementation of the provisions of Articles 115 and 116 necessary Rules are to be framed by the President. Although Articles 115 speaks of appointment, it also means terms and conditions of service. Articles 115 and 116 require that not only requirement Rules but also Rules governing conditions of service of the judicial officers and magistrates performing judicial functions are to be made by the President. Since the rule making power of the President is wide, unlimited and absolute, the President can make any provision under these Rules that are necessary for carrying out the purposes of separation of judiciary from the executive. (4) For separation of the subordinate judiciary from the executive no further constitutional amendment is necessary. Article 109 of the Constitution brings subordinate courts and tribunals under the control and superintendence of the High Court Division. Necessary rulemaking power has been given making the Supreme Court as the real wielder of authority in framing rules under Article 115 of the Constitution. Read with Articles 116 and 116A of the Constitution the subordinate judiciary has already been separated from the executive in the constitutional scheme. In the Fundamental Principles of State Policy Article 22 of the Constitution provides that the State shall ensure the separation of the judiciary from the executive organs of the State. This principle shall be applied by the State in the making of laws and Article 22 was not meant for beautifying the Constitution as an ornament. The will of the people was entitled to be implemented within a reasonable time and the period of 25 years from independence is definitely a reasonable period to implement the cherished will and desires of the people. The Supreme Court alone shall have overall control, supervision and management over the subordinate courts and over magistrates exercising judicial functions and the executive will have no control, supervision and management over them in any manner whatsoever. (5) Judicial officers do not come within the jurisdiction of the Administrative Tribunal as their service conditions are governed and determined by/or under Chapter II of Part VI of the Constitution. Courts or Judges are not subordinate to the said Tribunal and hence Judges or the Courts are not to seek relief from the Administrative Tribunal. (6) Some unreasonable conditions were attached with the pay scales of the Subordinate Judges, Additional District and Sessions Judges and District and Sessions Judges, which were not attached in respect of pay scales and allowances of other Bangladesh Civil Service Cadre holders. The impugned orders Annexures F & F(1) so far as the same relate to the writ petitioners and other judicial officers, are, ultra vires, the Constitution being violative of Articles 27 and 29 of the Constitution. The benefits given by order dated had been abruptly and arbitrarily taken away by Annexures F & F(1) without assigning any reason and the earlier order dated was acted upon and the same created a vested right in favour of the judicial officers. Annexure E dated shall stand valid and shall continue till new pay scales are fixed in future by framing necessary enactment and/or rules pursuant to the impugned judgment. 9. The final orders that the Division Bench in the writ petition passed were as follows: (i) The impugned orders dated and , Annexures F & F (1) respectively are declared to have been 4

5 made and issued without lawful authority and are of no legal effect, being ultra vires the Constitution. (ii) It is clear that the Service Cadre made under paragraph 2(X), namely, Bangladesh Civil Service (Judicial) as contained in the Bangladesh Civil Service (Re-organisation) Order, 1980 vide Annexure A with amendment (dated ), is ultra vires the Constitution. (iii) It is further declared that all the judicial officers of Bangladesh, i.e., all Judges of different courts from Assistant Judges to the District and Sessions Judges are not required to go and submit before the Administrative Tribunal for any grievance with respect to their service conditions and the said Judges and magistrates performing judicial functions shall be guided under Articles 115, 116 and ll6 A and according to the findings in the impugned judgment made above. (iv) It is declared that in order to give effect, carry out and implement fully the separation of judiciary from executive organ of the State no constitutional amendment will be necessary as the provisions for such separation are there in the Constitution itself. It is directed that the services of the judicial officers and magistrates performing judicial functions shall be known as Judicial Service of Bangladesh under the direct control and supervision of the Supreme Court. (v) It is also declared that refixation of National Pay Scale, 1991 as enumerated paragraph No. 3 of Services (Pay Allowances) Order, 1991 dated Annexure F so far as the writ petitioners concerned shall stand valid and the same will continue until necessary rules/enactment made; (iv) Assistant Judges and Senior Assistant Judges will continue to get their salaries and allowances as they are now getting which not be less than those that are admissible under paragraph No. 3 of Annexure F(1); (vii) Respondent Nos. 1, 2 and 4 shall take immediate step to make necessary rules under Article 115 or make enactment to give effect and carry out the purposes of the Constitution, particularly of Articles 109, 115, 116 and 116A read with Articles 8 and 22 of the Constitution: (viii) If the present pay scales of the petitioners and other judicial officers are amended or enhanced or new pay scales given before making rules under Article 11 the same of the said judicial officers a Magistrate shall be made and/or done keeping conformity with the pay scales as are now declared for them in the impugned judgment. 10. Leave was granted on the submissions Mr. Mahmudul Islam, the learned Attorney-General to consider the following submissions of appellant, namely, first, that the judicial officers other officers of the Civil Services fall into welldefined different classes, all of them being members of the service of the Republic in respect of the Government of Bangladesh which includes the Parliament, executive and the judiciary. There can be no question of discrimination of judicial officer and the other officers of the Civil Service and the High Court Division was wrong in declaring Annexures-F & F(1) to be discriminatory without lawful authority. Secondly, no discrimination in fact having been made, the High Court Division was finding discrimination of judicial officers without properly examining the provisions of Annexures-F & F(1). Thirdly, having regard to the status of Government service which permits changes in the service conditions by the Government and in the absence of any prohibition in varying terms and conditions of service and particularly in view of the provisions of Article 136 of the Constitution, the High Court Division was wrong in holding that imposition of conditions in Annexure F(1) in respect of judicial officers in without lawful authority. Fourthly, upon a complete misinterpretation of the provisions of the Constitutional and its scheme as made explicit in Parts VI and IX of the Constitution the High Court Division wrongly held that the inclusion of Judicial officers in the Bangladesh Civil Service (Re-organisation) Order, 1980 is ultra vires the Constitution. Fifthly, the High Court Division was wrong in taking the view that judicial officers are outside the purview of Part IX of the Constitution and that Articles 133 and 136 have no application in their cases, thereby depriving judicial officers of the benefit of fundamental rights under Article 29 and benefit of Article 135 of the Constitution. Sixthly, the High Court Division failed to make a distinction between Court and its presiding officer and they has led the High Court Division to take a wrong view of Articles 109 and 117 of the Constitution and to hold that judicial officers 5

6 need not approach the Administrative Tribunal for relief. Seventhly, in the face of express provisions of Article 116 of the Constitution, the High Court Division was wrong in holding that the Supreme Court alone shall have overall control, supervision and management of the judicial officers. Eighthly, the High Court Division was wrong in ignoring the express provisions of the Constitution and has given directions contrary to the provisions of the Constitution by creating a judicial service of Bangladesh under the direct control and supervision of the Supreme Court. Ninthly, the High Court Division traveled beyond its jurisdiction in directing adoption of legislative measures by the Government in violation of the principle of separation of powers adopted by the Constitution. And lastly, the present appeal involves important questions of law relating to the interpretation of the Constitution. 11. While Mr. Mahmudul Islam, learned Attorney- General made his submissions for the appellant. Mr. Amir-Ul-Islam, learned Counsel made the main submissions on behalf of the respondents. Their respective submissions will be reflected all over this judgment. Dr. Kamal Hossain and Syed Ishtiaq Ahmed made some short submissions on behalf of the respondents which will also be noted. Before we advert to their respective submissions, we shall take note of the main constitutional provision involved in this appeal. 12. The original and unamended Constitution of 1972 contained a sub-heading Subordinate Courts in Chapter II of Part VI of the Constitution in the following terms: Chapter II -Subordinate Courts 114. Establishment of subordinate courts.- There shall be in addition to the Supreme Court such courts subordinate thereto as may be established by law Appointments to subordinate courts.- (1) Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President- (a) in the case of district judges, on the recommendation of the Supreme Court; and (b) in the case of any other person, in accordance with rules made by the President in that behalf after consulting the appropriate public service commission and the Supreme Court. (2) A person shall not be eligible for appointment as a district judge unless he- (a) is at the time of his appointment in the service of the Republic and has, for not less than seven years, held judicial office in that service; or (b) has for not less than ten years been an advocate Control and discipline of subordinate courts.- The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the Supreme Court. 13. Judicial Service was defined in Article 152(1) of the Constitution as follows: judicial service means a service comprising persons holding judicial posts and being posts superior to that of a district judge; District Judge was defined as follows: district judge includes additional district judge; 14. Article 152(1) also defined the service of the Republic in the following terms: the service of the Republic means any service, post or office whether in a civil or military capacity in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic; 15. Article 152(1) of the Constitution also gives an inclusionary definition of the words the State as follows: the State includes Parliament, the Government and statutory public authorities; 6

7 16. The Constitution contains provisions for the Services of Bangladesh in Part IX, Chapter I which are as follows: 133. Subject to the provisions of this Constitution Parliament may by law regulate the appointment and conditions of service of persons in the service of the Republic: Provided that it shall be competent for the President to make rules regulating the appointment and the conditions of service of such persons until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law Except as otherwise provided by this Constitution every person in the service of the Republic shall hold office during the pleasure of the President (1) No person who holds any civil post in the service of the Republic shall be dismissed or removed or reduced in rank by an authority subordinate to that by which he was appointed. (2) No such person shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause why that action should not be taken: Provided that this clause shall not apply- (i) where a person is dismissed or remove or reduced in rank on the ground of conduct which has led to his conviction in a criminal offence; or (ii) where the authority empowered dismiss or remove a person or to reduce him in rank is satisfied that, for a reason recorded by that authority in writing, it is not reasonably practicable to give that person an opportunity of showing cause; or (iii) where the President is satisfied that in the interests of the security of the State it is not expedient to give that person such an opportunity. (3) If in respect of such a person that question arises whether it is reasonably practicable to give him an opportunity to show cause in accordance with clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce in rank shall be final. (4) Where a person is employed in the service of the Republic under a written contract and that contract is terminated by due notice accordance with its terms, he shall not, by reason thereof, be regarded as removed from office for the purposes of this article Provision may be made by law for the reorganisation of the service of the Republic by the creation, amalgamation or unification services and such law may vary or revoke any condition of service of a person employed in the service of the Republic. 17. Unnoticed by the learned Counsels of both sides and the High Court Division is subparagraph (6) of paragraph 6 of the Fourth Schedule to the Constitution (Transitional and temporary provisions) which without any subsequent amendment so far provides as follows: (6) The provision of Chapter II of Part VI (which relate to subordinate courts) shall be implemented as soon as practicable, and until such implementation the matters provided for in that Chapter shall (subject to any other provision made by law) be regulated in the manner in which they were regulated immediately before the commencement of this Constitution. Article 150 of the Constitution provides as follows The transitional and temporary provision set out in the Fourth Schedule shall have effect notwithstanding any other provisions of this Constitution. 18. Articles 115 and 116 were amended by the Constitution (Fourth Amendment) Act, 1975 (Act II of 1975) and a new Article 116A was inserted thereby. Later, a further amendment in Article 116 was made by the Second Proclamation 7

8 (Fifteenth Amendment) Order, 1978 (Second Proclamation Order No. IV of 1978) so that the present Chapter II of Part VI stands as follows- ''114. There shall be in addition to the Supreme Court such courts subordinate thereto as may be established by law Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercise by him in consultation with the Supreme Court. 116A. Subject to provisions of the Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.'' 19. The Services (Reorganisation and Conditions) Act, 1975 (Act No. XXXII of 1975), shortly the Act, was enacted in July 1975, but it was given a retrospective effect from the 1st July Under section 4 thereof the Government was given the power to reorganise the services of the Republic and for that purpose create new services or amalgamate or unify existing services. Section 5 authorised the Government to prescribe grades and scales of pay and other terms and other terms and conditions of service with a view to bringing uniformity in the grades and scales of pay of different persons or classes of persons. Section 7 provided that an order under section 4 or 5 may vary or revoke any condition of service of a person employed in the service of the Republic and no such person shall be entitled to any compensation for such variation or revocation of any condition of his service to his disadvantage. All those powers were conferred on the Government, not only on the strength of Article 136 of the Constitution but also on the authority of paragraph 10 of the fourth Schedule (Transitional and temporary provisions) of the Constitution which is as follows: 10. (1) Subject to this Constitution and to any other law- (a) any person who immediately before the commencement of this Constitution was in the service of the Republic shall continue in that service on the same terms and conditions as were applicable to him immediately before such commencement: (b) all authorities and all officers, judicial, executive and ministerial throughout Bangladesh exercising functions immediately before the commencement of this Constitution, shall, as from such commencement, continue to exercise their respective functions. (2) Nothing in sub-paragraph (1) of this paragraph shall- (a) derogate from the continued operation of the Government of Bangladesh (Services) Order, 1972 (President s Order No. 9 of 1972),or the Government of Bangladesh (Services Screening) Order, 1972 (President s Order No. 67 of 1972); or (b) prevent the making of any law varying or removing the conditions of service (including remuneration, leave, pension rights and rights relating to disciplinary matters) of persons employed at any time before the commencement of this Constitution or of continuing in the service of the Republic under the provision of this paragraph. 20. By SRO No /80/IED(IC)SII-92/80-98 dated the Establishment Division of the Cabinet Secretariat notified in the Official Gazette the Bangladesh Civil Service (Reorganisation) Order, 1980 in exercise of powers conferred by section 4 of the Act. By paragraph 2 of that Order 14 Bangladesh Civil Service Cadres were created of which BCS (Judicial) was No. X. This Order was further amended by an SRO dated whereby as many as 30 Service Cadres were created BCS (Judicial) being No. XVI. By a further SRO dated 1 January 1981 Bangladesh Civil Service Recruitment Rules, 1981 were framed by the President in exercise of powers conferred on him by the proviso to Article 133 of the Constitution. These Recruitment Rules, separately made for separate cadres were made applicable to all Service Cadres created by the aforementioned SROs, including BCS (Judicial). 8

9 21. It will be seen therefore that the Act itself emanated from the substantive law-making power of the Parliament under Article 136, that the Government created Bangladesh Civil Service Cadres under section 4 thereof under a delegated power and that the President framed Recruitment Rules in exercise of power under the proviso to Article 133 of the Constitution. 22. Neither the Parliament nor the Government nor the President took any notice of the provisions of the Constitution contained in Chapter II of Part VI of the Constitution, notwithstanding the mandate of the Constitution contained in sub-paragraph (6) of paragraph 6 of the Fourth Schedule to the constitution. 23. Now the respondents say, exclude Part IX altogether from the judicial service and apply only Chapter II of Part VI to the said service and the appellant says, apply both Chapters and Parts to the extent applicable to the judicial service and preserve and maintain the harmony in the Constitution. 24. Dr. Kamal Hossain has drawn our attention to the original and unamended Chapter II of Part VI of the Constitution and has also referred to the Eighth Amendment case (Anwar Hossain vs. Bangladesh, BLD 1980 Special Issue 1) and submits that the independence of the judiciary has been accepted by this Court to be a basic structure of the Constitution. He submits that although the Fourth Amendment of the Constitution damaged the basic structure of the Constitution the Second Proclamation (Fifteenth Amendment) Order, 1978 held the pillar up by providing for consultation with the Supreme Court in Article 116. He urge to take into consideration the contemporaneous concepts on the independence of the judiciary relies upon page 558 of the Constitutional Law of Bangladesh by Mahmudul Islam (the present Attorney-General). He also relied upon the case of Chandra Mohan vs. State of Uttar Pradesh 1966 (SC) 1987 and recounts the history of the Provincial Civil Services (Judicial Branch) from paragraph 20 thereof. He also relied upon the case of Chandramouleshwar Prasad vs. The Patna High Court, AIR 1970 (SC) 370, and relies upon the meaning of consultation given in that decision while commenting on Article 116. Dr. Kamal Hossain refers to the books of Herbert Morrison Government and Parliament and to Harold J Laski s Grammar of Politics at pages 128 and 129 to emphasise the difference between the functions of the administrative executive service and the judicial service. The former performs the function of assisting the political executive in framing policies and also in executing policies while the judiciary administers justice without fear or favour the judiciary judges the administrative service administers administrative law. They are not policy framers and policy-executors. Relying upon the case of Chief Justice of Andhra Pradesh vs. LVA Dikshitulu, A1R 1979 SC 193, he submits that the word appointments in Article 115 of our Constitution has been used in a wide sense so as to cover the whole body of terms and conditions of service of the members of the judicial service. We shall or differ from his submissions in course of our discussions. 25. At the heart of the controversy lies the issue whether the members of the judicial service are in the service of the Republic or not. 26. Mr. Amir-ul- Islam submits that the definition of the service of the Republic means any service in respect of the Government of Bangladesh. By Government of Bangladesh what is meant is the executive Government that discharges the executive administrative functions of the State. The judicial officers not being executive functionaries cannot be said to be in a service in respect of the Government of Bangladesh. The learned Attorney-General, on the other hand, had referred to certain text books viz., the Government of Modern States by Willoughby at pages 4 and 2l6, and Administrative Law by Bradley and Ewing, 12th Edition, Chapter V at pages 86 and 94 and Indian Constitutional Law by Jain, Fourth Edition, at pages 16 and 159 and submits that the word Government in the definition the service of the Republic has been d in a generic sense including the parliament, executive and judiciary. Further, Article 1 of the Constitution provides that Bangladesh is a unitary, dependent, sovereign Republic to be known as the People s Republic of Bangladesh. The word Government means Government of the People s Republic of Bangladesh. Under Article 146 of the Constitution The Government of Bangladesh may or be sued by the name of Bangladesh. When the Government is sued it is the Republic which is sued. Court decrees against the Government constitute a charge on the consolidated fund. Under 87(1) There shall be laid before Parliament, respect of each financial year, a statement of the estimated receipt and expenditure of the for that year, in this Part referred to as the annual financial statement. Article 87(1) is the crux of the matter in the interpretation of the word Government. The annual financial statement Article 87(1) not only contains estimated receipts and expenditure of the executive Government but also of the parliament and the judiciary. Under Article 90 a yearly appropriation act is passed by the Parliament to make the expenditure charged on the consolidated fund as shown in 9

10 the annual financial statement and as laid before Parliament. Government, therefore, is a generic term, he submits. He further points out that the High Court Division towards the end of the impugned judgment conceded that judicial service is a service of the Republic in a limited sense. The proposition thus laid down is vague and uncertain and will lead to uncertainly according to him. To avoid recurring debates and controversies it will be wise and prudent, he submits, to treat the judicial service as a species of the service of the Republic and not to treat it as a service completely divorced from the service of the Republic. To do otherwise will bring disharmony in the interpretation of the Constitution, he submits. 27. We shall answer what is meant by Government in the definition of the service of the Republic by taking note of the fact that the Constitution uses that word both in the sense of executive government and in a generic sense. Article (1)(e) and Chapters I, II, IIA and III of Part IV use the word in the sense of executive Government. But Chapter II of Part V. Legislative and Financial Procedure uses the word Government in a generic sense, meaning the Republic as a whole. Part IV is concerned with the Services of Bangladesh, not just one service. In the definition of the service of the Republic, a broad distinction has been drawn between civil service and military service. All those who are civilian public officers are entitled to the protection of Article 134. The Constitution in Article 152(1) defines public officer as meaning a person holding or acting in any office of emolument in the service of the Republic. Persons appointed to the Secretariat of Parliament and the Staff of the Supreme Court, although governed by separate terms and conditions of service, are entitled to the protection of Article 134, because they are public officers holding or acting in an office of emolument in the service of the Republic. They are not in the executive administrative service of the executive Government of Bangladesh, but broadly, and in a generic sense, in a service in respect of the Government of Bangladesh. The definition of the service of the Republic uses the word Government in a generic sense. Hence on that ground the members of the judicial service cannot be excluded from the ambit of the service of the Republic. 28. The High Court Division has held that (a) the Constitution has specified separate and distinct judicial service in Articles 115,116 and 116A of the Constitution. (b) It has also separately defined judicial service in Article 152(1). (c) The defence service (Chapter IV of Part IV), the Parliament Secretariat (Chapter 1 of Part V. Article 79), and staff of the Supreme Court (Chapter I of Part VI. Article 113) have been dealt with separately in the Constitution. It follows therefore that the judicial service shall be governed by separate provisions contained in Chapter II of Part VI. Mr. Amir-ul Islam has additionally argued that Judges are appointed on the doctrine of good behaviour, but if -they are treated to be in the service of the Republic then they will hold office during the pleasure of the President under Article 134 which strikes at the very root of the independence of the judiciary. Besides, the language of Part IX is such that it cannot be meant for judicial officers exercising judicial functions. 29. The learned Attorney-General argues, on the other hand, that the judicial officers have been designated as belonging to Bangladesh Civil Service Cadre, not because they perform the executive functions of the Government, but for the purpose of distinguishing them from military service. He submits that the service of the Republic is a genus of which judicial service is a species. He does not object to a change in the nomenclature of BCS (Judicial), but insists that their terms and conditions of service are governed by Article 133, not by Chapter II of Part VI, although he ultimately concedes that part of the terms and conditions of service of the judicial service is governed by Chapter II of Part VI. 30. Let us see to resolve this controversy whether Chapter II of Part VI is a self-contained provision of the Constitution or not. Let us also examine Part IX and sub-paragraph (6) of paragraph of the 6 of the Fourth Schedule to the Constitution. This exercise will help us in finding out whether chapter II of Part VI contains a fullfledged alternative to Article 133 or not. Our answers to the various issues raised by the learned Counsels will also be revealed by during this exercise. 31. We shall consider Article 114 first, this Article provides that in addition to the Supreme Court such courts may be established by law as are subordinate thereto. The constitutional implication of this Article is that the subordinate judiciary unlike the Supreme Court of Bangladesh, is not a creature of the Constitution but of law. Its statute is not the same as that of the Supreme Court. The Constitution has guaranteed the independence of the Judges of the Supreme Court in exercise of judicial functions by making some provisions in the Constitution. There are provisions regarding appointment of Judges, their tenure of office, their removability only after being tried by their on peers in the Supreme Judicial Council where thy have the fullest opportunity to defend themselves, their salary being chargeable on 10

11 the consolidated fund and a provision in Article 147 that the remuneration, privileges and other terms and conditions of the Judges of the Supreme Court shall not be varied to their disadvantage during their terms of office. No such guarantees of specific nature have been given to the members of the judicial service in the Constitution. A question may arise as to whether any Court can be established by law without being subordinate to the Supreme Court, i.e. whether a set of courts can be establish outside the reach of the Supreme Court and another set within its reach, but that is not a question involved in this appeal. 32. In Article 115 it is the President who has been vested with the primary power, as distinguished from contingent power, to frame rules with regard to appointments of persons to offices in the judicial service or as magistrates exercising judicial functions. This rule making power of the President is constitutionally different in content and effect from the contingent rule making power of the President in the proviso to Article 133 of the Constitution. 33. The President may by order or by making rules, as the case may be, make provision for certain matters until the Parliament enacts to that effect. As and when laws are made by Parliament, either the Presidential orders or rules go out of existence or they exist to the extent not in conflict with laws made by the Parliament. This is called the contingent rulemaking power of the President and examples of this power are to be found in our Constitution in Articles 62(2), 75(1)(a), 79(3), 85, 127(2), 128(3), proviso to Article 133, Articles 138(2) and 147(1)(b). 34. The President is also designated as a rule approving authority under the Constitution. No rules can be framed without his prior or subsequent approval. Examples are Article 107(1) and Article 113(1) of the Constitution. 35. As distinguished from the above role of the President the Constitution also conferred on the President the direct primary and plenary power of framing rules which even the Parliament cannot frame and which have an immediate legislative effect. One example is Article 55(6) of the Constitution which provides that the President shall make rules for the allocation and transaction of the business of the Government. Article 115 of the Constitution provides another example of such a direct, primary and plenary power of the President to make rules with regard to appointments of persons to offices in the judicial service or as magistrates exercising judicial functions. The Parliament has no authority under our Constitution to make laws or the Government has no authority to pass orders or frame rules on this subject. The Parliament also cannot delegate to the executive Government the authority to pass any executive order on the subject. Nor does the Constitution require that the President shall exercise his power under Article 115 in consultation either with the Supreme Court or with any public service commission. In the original unamended Constitution of 1972, Article 115 required the President to make appointments of District Judges on the recommendation of the Supreme Court and in the case of any other persons in accordance with rules made by him after consulting the appropriate public service commission and the Supreme Court. After amendment the recommendatory role of the Supreme Court in the case of appointment of District Judges and the consultative role of the appropriate public service commission and the Supreme Court in the case of appointment of any other persons in the judicial service have been done away with. We cannot ignore the effect of amendment in Article 115 while interpreting it. If we hold that the recommendation or consultation with the Supreme Court is still necessary under Article 115, we cannot by any means explain the necessity of omission of recommendation and consultation in the amendment of Article 115. The direction of the High Court Division, placing the judicial service of Bangladesh under the direct control and supervision of the Supreme Court of Bangladesh appears to us to be in direct conflict with the express provisions of Article 115. We do not uphold this direction. 36. Power to appoint under section 16 of the General Clauses Act, 1897 which applies in relation to the Constitution under Article 152(2) of the Constitution, carries with it the power to suspend or dismiss. It has been argued by Mr. Amir-ul Islam that the President has also the authority to make rules regarding suspension and dismissal in exercise of his power under Article The rule-making power of the President in relation to appointments includes, in our opinion, the rule making power to create a judicial service in the first place, to prescribe qualifications for appointment (as is contained in Article 95(2) in respect of Judges of the Supreme Court), the manner and method of recruitment and all pre-appointment matters required to be covered by rules. The power to suspend or dismiss, like the power to appoint, is an executive power no doubt, as has been rightly argued by the learned Attorney-General. But if the executive power to appoint includes the power to suspend or dismiss, and if Article 115 gives the President the rule-making power 11

12 in respect of appointment, then we do not see why the word appointments in Article 115 should not be given its full meaning both in the executive and rule making spheres and why rule-making power of appointment should not extend to rule-making power to suspend or dismiss. True, the control over discipline is a subject matter of Article 116 and the power of control is also an executive power, but reading Articles 115 and 116 together we find that the President will make rules regarding suspension and dismissal under Article 115 and frame the rules in such a manner that he will leave the control to himself, to be exercised in the manner contained in Article 116. Article 65 of the Constitution vests the legislative power of the Republic in the Parliament. A plenary rulemaking power of the President has the same legislative effect as an Act of Parliament. Nothing should be read or implied or construed in any provision of the Constitution which widens or narrows the law making power of any other organ, because any such interpretation will pro tanto correspondingly narrow or widen the vested law making plenary power of the Parliament. But Article 115, by using the word appointments and Article 152(2), by making the General Clauses Act, 1897 applicable to the Constitution, widened the scope of rule-making power of the President under Article 115 so as to include rule-making power of suspension and dismissal as well. 38. With regard to recruitment rules, we must point out that Article 140 of the Constitution is inapplicable to members of the judicial service, unless the President incorporates the same in Recruitment Rules to be made under Article 115, While making Recruitment Rules under Article 115 it has to be borne in mind that Article 116A will be meaningless without judicial autonomy-judicial autonomy requires that judicial appointments shall be made on merit by a separate judicial service commission which may be established either by a Statute or by the President while framing rules under Article 115. The Judicial Service Commission, as the contemporaneous thinking goes, shall consist of a majority of members drawn from the Senior Judiciary, both from the Supreme Court and the subordinate courts. Appointments to all levels of the judiciary should have, as an objective, the achievement of equality between men and women. Recommendation for judicial appointment should come from the said commission. This is a minimum initial guarantee of judicial independence under Article 116A when a maiden exercise of rule making is made by the 1 under Article Reading Article 115 as we have done, we find no constitutional basis of the exercise of Government power in creating BCS (Judicial) Service Cadre under the SRO dated 1 September, 1980 and 31 August The learned Attorney-General has conceded that the general provision of the Constitution will prevail subject to special condition. This is a golden rule of construction not only of a statute but also of a Constitution. Article 133 and Article 136 of the Constitution are general provisions, but Article 115 is a special condition. This power of the President cannot be obliterated when the Parliament makes or exhausts its exercises under Article 136. The President is not empowered to act under the proviso to Article 133 what he is required to do under Article 115. These are distinct and separate powers. The Parliament in exercise of its power under Article 136 cannot usurp the primary rule-making power of the President under Article 115. Article 136 will always have to be read keeping in view the fact that the reorganisation of the services of the Republic cannot be allowed by amalgamating or unifying the judicial service with any other civil administrative executive services of the Republic or by placing the judicial service on a par with the civil administrative executive services on making it one of the many Cadre services of the Bangladesh Civil Service. The judicial service has a permanent entity as a separate service altogether and it must always remain so in order that Chapter 11 of Part VI is not rendered nugatory. 40. The Services (Reorganisation and Conditions) Act (Act No. XXXII of 1975) defines service in section 2(d) as service includes any post or office. We do not ascribe any motive to the Parliament and do not think that the Parliament was oblivious of the fact that judicial service cannot be included within the purview of any post or office ; which includes post or office of civil administrative cadres. In so far as appointments of persons to offices in the indicial service or as magistrates exercising judicial functions is concerned, the rule-making power is solely that of the President. Therefore those sections of the Act which have been construed, interpreted, and applied by the Government as an enabling power (a) to create a judicial service, (b) to provide for its rules of recruitment and (c) to frame other terms and conditions of service including grades and scales of pay in the same breath and on a par with civil administrative executive services, have been totally misconstrued misinterpreted, and misapplied. 41. The creation of a BCS (Judicial) Cadre as if it is a civil service was not only within the contemplation of Article 136, but was also violative of the constitutional scheme. 12